Negotiated Report (Representations made) MCU21 0193

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Patrick Murphy, Coordinator Planning
Development Assessment

APPLICATION DETAILS
Application No.	MCU21/0193
Development Approval	Development Permit for Material Change of Use of Premises (Indoor Sport & Recreation)
Applicant	LiFT Strength & Conditioning
Representations Received On	10 March 2022
Number of Submissions for Original Application	N/A

PROPERTY DETAILS
Property Address	Noosa Cine Centre 29 Sunshine Beach Rd Noosa Heads Qld 4567
RP Description	Lot 15 SP 111607
Land Area	230m²
Existing Use of Land	Vacant commercial tenancy

STATUTORY DETAILS
SEQRP Designation	Urban
Zone	Major Centre Zone
Precinct	Noosa Junction Hospitality Precinct
Local Plan Area	Noosa Heads Local Plan Area
Overlays	N/A
Assessment Type	Representations made to original approval

background
A development approval for a Development Permit for Material Change of Use of Premises (Indoor Sport & Recreation) was issued on 18 February 2022
The applicant suspended the appeal period and made representations on 10 March 2022 to the development approval conditions. The representations are detailed below but primarily relate to the number of persons permitted on site and acoustic requirements.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 7
7.	The gymnasium is limited to a maximum of 18 people at any given time (including staff).
Applicant’s Representation
This Condition to restrict the number of persons on site is unreasonable on a number of grounds including:

• The previous use, Coffee Club, provided dining for up to 100 patrons,
• Sufficient carparking is provided, and
• Client attendance will be generally outside of peak business hours.

The applicant is at a loss for why class numbers have been capped particularly as the Council planners own delegated report does not raise the issue relating to attendance on site.

Whilst class numbers at LiFT Strength and Conditioning are capped at 16 persons per class with up to 2 staff in attendance, the Condition prevents other clients from using the Indoor Sport and Recreation Use before or after their class (e.g., to use the toilet/shower amenities or stretching prior/after class etc.); or for the operator to offer workshops, information nights, or to offer work experience placements for students.

The Condition unnecessary restricts the use of LiFT Strength and Conditioning particularly as sufficient car parking is provided within the Noosa Junction Cinema Complex. There are approximately 256 car parking spaces located behind the cinema in addition to the on-street parking available.

Furthermore, as provided to Council (LiFT’s Example Timetable) and typical of Indoor Sport and Recreational uses, class times predominately run from early mornings and recommence in the afternoon. That is, classes are generally run outside of the operating hours of other commercial businesses. Thus, LiFT Strength and Conditioning will have no negative impact on other commercial tenancies and the restriction of people on site is unnecessary.

Most importantly the use meets the performance outcome for carparking no matter what class size noting the previous use could have up to 100 persons on site at any time.
The condition is onerous and not reasonable nor relevant.
Delete Condition 7.
Assessment of Representation
The condition was imposed to reflect the number of attendees as detailed by the applicant in the application material. Limiting the number of attendees provides an upper limit on car parking demand associated with the use. Notably the planning scheme requires car parking to be provided at a rate associated with the floor area of the tenancy and does not require car parking to be assessed against the number of attendees. Based on the gym’s 168m2 of gross floor area 9 car parking spaces area required. As the original application was code assessable and there no requirements to limit the number of patrons the applicant’s representation to delete the condition is supported.

Condition 8
The Indoor Sport and Recreation use must comply with the following Acoustic Amenity Criteria where measured from within any adjoining tenancy
7am to 10pm – noise levels must be no more than five decibels (A) above the background noise level
10pm to midnight – noise levels must no more than three decibels (A) above the background noise level
Midnight to 7am –  noise levels must no noise heard

Applicant’s Representation
Conditions 8b and 8c are not relevant to the hours of operation nominated in Condition 6 (5:00AM – 8:00PM).

Condition 8b is not relevant and should be deleted as this refers to time outside the permitted operating hours.

It is unclear what restrictions are being enforced by Condition 8c. Nonetheless, Condition 8c is both irrelevant and unreasonable. The permitted operating hours are from 5:00AM to 8:00PM. Between the hours of midnight to 5:00AM, the condition is not relevant and should be deleted.

It is unreasonable to impose that no noise is heard from 5:00AM to 7:00AM* (*this is an assumption to the intention of Condition 8c due to the topographical error*). The Decision Notice has approved the use within an existing building located in the Major Centre Zone (Noosa Junction). The Major Centre Zone provides for a large variety of uses and activities to service the Noosa Shire, and as such it is expected that noise will be generated from these uses. It is unreasonable to Condition any use to not make any “noise” when the use is located along a Primary Active Street and in the Noosa Junction Hospitality Precinct.
The nearest residential property is approximately 72 metres away behind the cinema building, car park, and embankment on Bottlebrush Avenue. Consequently, there will be no impact on the residential amenity associated with the operation of LiFT Strength and Conditioning.
Proposed Amendment to Condition 8

8. 	The Indoor Sport and Recreation use must comply with the following Acoustic Amenity Criteria where measured from within any adjoining tenancy:
a. 5am to 8pm – noise levels must be no more than ten decibels (A) above the background noise level
Assessment of Representation
It is noted that the condition does include a typographical error at 8c. with the condition intended to read:
The Indoor Sport and Recreation use must comply with the following Acoustic Amenity Criteria where measured from within any adjoining tenancy
7am to 10pm – noise levels must be no more than five decibels (A) above the background noise level
10pm to midnight – noise levels must no more than three decibels (A) above the background noise level
Midnight to 7am – no noise heard

The condition was imposed in consultation with Council’s Environmental Health team and was consistent with the advice provided to the applicant in the Information request. Council officers are aware of the potential for recreation activities within a commercial development to create noise nuisance to both surrounding residential development and to adjoining commercial tenancies. It has become evident that this noise nuisance often occurs early in the morning.
The request to amend the condition has been reviewed by Council’s Environmental Health unit who recognise that it is reasonable for the condition to be amended to strike a fair balance between noise impacts to neighbouring tenancies and ensuring no unreasonable nuisance or sleep disturbance to the nearest residential properties which are more than 70 metres away.
In this regard, it is recommended that the condition be amended to read as follows:
The Indoor Sport and Recreation use must comply with the following Acoustic Amenity Criteria as follows:
5am to 8pm – noise levels must be no more than ten decibels (A) above the background noise level where measured from within any adjoining tenancy;

5am to 7am – noise levels must not be audible from nearest residential property boundaries

Condition 9
9.	In addition to the ​Acoustic Amenity Criteria detailed in Condition 8, the recommendations of the Gym Vibration Assessment prepared by Acousticworks dated 18 January 2022 must be implemented prior to the commencement of the use and maintained whilst the use continues to operate from the premises, recommendations are to be modified to include the following as a minimum:
Walls must be sound proofed on all sides
Doors must be acoustic
Installation of rubber flooring with at least 22mm thickness
The use gym equipment such must include bumper plates, coated dumbbells, kettlebells and installation of shock absorbing pads or decouplers to gym machines in order to separate them from the floor and prevent the transference of vibrations (in particular in free weights area)
Applicant’s Representation
Conditions 9a and 9d are both irrelevant and unreasonable. Condition 8 limits the operation of the Indoor Sport and Recreation use by enforcing noise limitations. It is unreasonable to impose upon the applicant the requirement to fit additional sound proofing to the premises and purchase specialist gym equipment if the operator, through operational management and premises fit-out, can comply with Condition 8.
The requirements of Conditions 9a and 9d are unnecessary and are an unreasonable burden on the applicant.
Proposed Amendment to Condition 9

9.	In addition to the Acoustic Amenity Criteria detailed in Condition 8, the recommendations of the Gym Vibration Assessment prepared by Acousticworks dated 18 January 2022 must be implemented prior to the commencement of the use and maintained whilst the use continues to operate from the premises, recommendations are to be modified to include the following as a minimum:

a. Doors must be acoustic, and
b. Installation of rubber flooring with at least 22mm thickness.
Assessment of Representation
Condition 9 was constructed in consultation with Council’s Environmental Health team and has been informed by noise amenity concerns arising from other gymnasiums within the shire. Notwithstanding, the applicants request (including the original acoustic report) have been reviewed by Council Environmental Health team who have agreed to remove the requirements at 9a and d based on the acoustic amended criteria within condition 8 also noting that the amended condition 9 as requested by the applicant includes additional measures to those recommended in the submitted acoustic report.
Accordingly, it is recommended to amend condition 9 as follows:

In addition to the Acoustic Amenity Criteria detailed in Condition 8, the recommendations of the Gym Vibration Assessment prepared by Acousticworks dated 18 January 2022 must be implemented prior to the commencement of the use and maintained whilst the use continues to operate from the premises, recommendations are to be modified to include the following as a minimum:

a. Doors must be acoustic, and
b. Installation of rubber flooring with at least 22mm thickness.

conclusion & reasons for decision
The applicant has made representations to conditions regarding patron number and acoustic requirements. Whilst it is agreed to delete the condition regarding patron numbers it is not agreed to amend the acoustic conditions on the basis that the
RECOMMENDATION
With regard to Application No. MCU21/0193, and the representations made, Council on 22 April 2022 decided to:
A.	Delete condition 7.
B.	Amend conditions 8 and 9 to read as follows:
The Indoor Sport and Recreation use must comply with the following Acoustic Amenity Criteria as follows:
5am to 8pm – noise levels must be no more than ten decibels (A) above the background noise level where measured from within any adjoining tenancy;

5am to 7am – noise levels must not be audible from nearest residential property boundaries

9.	In addition to the Acoustic Amenity Criteria detailed in Condition 8, the recommendations of the Gym Vibration Assessment prepared by Acousticworks dated 18 January 2022 must be implemented prior to the commencement of the use and maintained whilst the use continues to operate from the premises, recommendations are to be modified to include the following as a minimum:

a. Doors must be acoustic, and
b. Installation of rubber flooring with at least 22mm thickness.

C.	Note the report is provided in accordance with Section 83(9) of the Planning Act 2016.

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